Kathleen Parker: Timber titan appeals to Supreme Court

KATHLEEN PARKER

Published 1:54 pm, Saturday, March 31, 2018

When the country's second-largest lumber producer tries to take the U.S. Justice Department to the Supreme Court over a forest fire that started under the distracted gaze of a watchtower forester — who at the time was reportedly peeing on his own bare feet — you can expect a few sparks to fly.

You also might want to sit down, take out a scratch pad, and prepare to be entertained, if somewhat overwhelmed, by allegations of prosecutorial fraud, coverups, sham damages, fictionalized reports, a presiding judge's tweet too far and millions of dollars in losses and judgments — all part of an environmental whodunit that spelled catastrophe for 65,000 acres of timber and wildlife and created a legal mess that began more than a decade ago in northern California.

In brief: A fire started in September 2007 on property leased by Sierra Pacific Industries (SPI), ostensibly by a bulldozer operated by a man hired by a subcontractor employed by SPI. Among the acreage burned, 45,000 acres were part of the Plumas and Lassen national forests.

A joint investigation by the United States Forestry Service (USFS) and the California Department of Forestry and Fire Protection (Cal Fire) concluded that the "Moonlight Fire" was caused by a bulldozer striking a rock while its operator installed erosion-prevention berms.

Needless to say, both state and federal lawsuits ensued, involving several defendants, but only SPI was capable of paying the extraordinary damages the government sought — nearly $1 billion. Other defendants fought and suffered grievously: The subcontractor went out of business. Rather than risk ruinous liability, SPI settled the federal case for $55 million and the transfer of 22,500 acres of land to the government.

Next came the state case, where evidence of misconduct was so overwhelming that the judge threw out the case, calling the joint investigation and prosecution "corrupt and tainted" and saying that it "threatened the integrity of the judicial process." He concluded that petitioners could not "ever have received ... a fair trial," and awarded SPI $32 million in compensatory sanctions — the largest sanction against a government body in U.S. history.

Given these developments, Sierra Pacific sought to ditch the federal settlement for "fraud on the court" — and lost. Presiding U.S. district judge William Shubb basically said that a settlement is a done deal and that new evidence that turned up in the state case wasn't enough to justify reopening the case. The 9th Circuit Court of Appeals agreed.

Shubb's conduct on social media was also called into question by SPI attorneys when they sought to reopen the settlement. On a Twitter account attributed to Shubb by SPI's lawyers — though not under his name — Shubb allegedly followed federal prosecutors, and they him. After Shubb's ruling favoring the prosecutors, the Twitter account in question posted a story about the case that bore an inaccurate headline — "Sierra Pacific still liable for Moonlight Fire damages" — that the federal prosecutors then retweeted.

However, SPI never admitted culpability and, therefore, was not "liable." More to the point, SPI attorneys say that Shubb's apparent posting calls into question his neutrality; his selection of a misleading story to post could create the impression of bias.

The Moonlight Fire case is sufficiently fascinating as a multi-faceted drama, but it is certainly more than that. Ten state attorneys general have now filed an amicus brief urging the Supreme Court to accept the case. Yet, even an outrageous case of prosecutorial misconduct isn't enough to get the Supreme Court's review. SPI lawyer Paul Clement, a veteran Supreme Court attorney, has identified two issues for the court to consider in his petition:

First, that when it comes to prosecutorial overreaching, you don't look only at the fraud after the fact but at its totality, as the high court previously has held. Second, a judge has no business tweeting about pending cases. As Clement says in his petition, one question "is as old as the Republic; the other is unique in our social media age. Both merit this court's review."

Amongst the many examples of fraud Clement hopes to present to the justices would be that the government concealed misconduct by the federal employee who was supposed to have been in the lookout tower when the fire started. He was allegedly not at his post but was instead discovered by a superior out on the tower's catwalk, reeking of marijuana, and peeing on his feet.